Chemerinsky: Corporations, contraception and religious freedom

The Supreme Court will hear oral arguments Tuesday in the two most high-profile cases of this term to consider whether it violates the religious freedom of secular corporations to force them to provide insurance to employees that includes contraceptive coverage: Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Sebelius.

The Patient Protection and Affordable Care Act required that the Department of Health and Human Services promulgate regulations to ensure that insurers provide coverage for preventative medical care. These regulations mandate that employers include in their insurance coverage payments for contraceptives. There is an exception for religious institutions, like the Catholic Church, that oppose contraception. Also, religiously affiliated institutions, such as a Catholic university or the Little Sisters of the Poor Home for the Aged, can opt out of providing such insurance coverage by signing a two-page form.

The two cases before the Supreme Court involve corporations that are not affiliated with religious institutions. They sued because they wish to operate in accord with the faith of their owners and they believe that it would violate their religious beliefs to provide contraceptive coverage to their employees. Both cases involve claims under a federal statute, the Religious Freedom Restoration Act, which says that the government can significantly burden religious freedom only if its action is necessary to achieve a compelling government purpose.

Conestoga Woods Specialties also involves a claim that the contraceptive mandate violates the First Amendment’s protection of free exercise of religion. The free exercise claim is about the meaning and application of Employment Division v. Smith, decided in 1990, in which the Supreme Court held that the free exercise clause cannot be used to challenge a generally applicable law, even if it burdens religion. In fact, the Religious Freedom Restoration Act was adopted to overrule Smith and restore religious freedom by statute to what had previously been protected under the Constitution.

The cases pose important, unresolved issues concerning religious freedom. First, can secular corporations claim to have religious beliefs? The challengers–Hobby Lobby and Conestoga Woods Specialties–argue that the Religious Freedom Restoration Act protects “persons” and the federal Dictionary Act defines persons to include corporations. They maintain that owners of a company have the right to operate it in accord with their religious beliefs. They point to Citizens United v. Federal Election Commission, of 2010, in which the Supreme Court held that corporations have the First Amendment right to spend money in independent expenditures in election campaigns and argue that by analogy businesses should have the protections of free exercise of religion.

But the United States argues that a corporation cannot have beliefs, religious or otherwise. Never before has the Supreme Court allowed secular corporations to claim religious freedom. People create corporations to protect themselves from liability. By making the corporation a separate entity, the investors are liable only to the extent of their investment. The corporation is an entity that is treated as legally separate from the individuals who run it or own it.

In recent years, the court has accorded free speech rights to corporations, but in doing so it always has explained that this is because allowing more speech will further the underlying goal of the First Amendment of people being better informed. The government maintains that this has no application to the question of whether corporations can claim religious freedom. A better analogy is to the privilege against self-incrimination under the Fifth Amendment: individuals can claim this, but not corporations.

Second, even if secular corporations can have religious beliefs, does it infringe them to provide insurance that includes contraceptive coverage? The corporations contend that they are effectively being made to pay for activities that violate their religious beliefs. They argue, for example, that some types of contraceptives act after conception and that this, under their religious beliefs, is murder. The claim is that it violates religious freedom to compel them to pay for something that their religion deems to be wrong.

But the United States argues that requiring insurance to include coverage for contraceptives does not burden or violate anyone’s religious freedom. The companies, and their owners, officers and directors, are not required to use or endorse contraception; they remain free to express open opposition to the use of contraceptives. The federal regulations do nothing more than require that the company provide an insurance policy that includes coverage for contraception. If the challengers prevail, would this mean that Christian Scientists do not have to provide any health insurance to their employees? Indeed, could an employer even require, as a condition of employment, that no money paid as salary be used to purchase contraceptives (or other things that violate the employers’ religious beliefs?)

Finally, even if corporations can have religious beliefs and even if the contraceptive mandate violates them, there is the question of whether the government law is necessary to achieve a compelling purpose. On the one hand, for almost a half century, the Supreme Court has held that people have the fundamental right to control their reproductive autonomy, and this includes the right to purchase and use contraceptives. The government has a compelling interest in helping to facilitate the ability of people, especially women, to exercise this basic right of reproductive autonomy. The costs of contraceptives, and especially the costs of an unwanted pregnancy, fall disproportionately on women. The contraceptive mandate is entirely about whether women will be able to have the costs of their contraceptives paid; if not, some will have to use less effective birth control and face the reality of unwanted pregnancies.

On the other hand, the companies challenging the regulation deny that there is a compelling government interest and argue that even if there is one, there are less restrictive alternatives to achieve the goal. The government, for example, could directly pay for contraceptives for women and does not need to require employers do this through their insurance coverage.

In predicting what the Supreme Court is likely to do, it is impossible to ignore the context. The issue arises out of regulations adopted to enforce the Patient Protection and Affordable Care Act, a statute that remains deeply divisive along partisan lines. Every Republican in Congress voted against it and the Republican-controlled House of Representatives still votes regularly to repeal it. Conservatives and religious groups filed 56 amicus briefs urging the court to strike down the contraceptive mandate. Liberals and those supporting the contraceptive mandate filed more than two dozen briefs urging the court to uphold it.

The cases are important because they will determine whether women in the United States will receive insurance coverage for contraceptives. The cases are also significant in that the court will need to confront basic constitutional issues: What are the rights of corporations; what is a substantial burdening of religious freedom; what is sufficient to meet strict scrutiny? The answers to these questions could have a great impact on so many other areas of constitutional law.

Erwin Chemerinsky, Dean and Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law at the University of California, Irvine School of Law, is one of the nation’s top experts in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He is the author of seven books, the latest being The Conservative Assault on the Constitution (Simon & Schuster, 2010). His casebook, Constitutional Law, is one of the most widely read law textbooks in the country. Chemerinsky has also written nearly 200 law review articles in journals such as the Harvard Law Review, Michigan Law Review, Northwestern Law Review, University of Pennsylvania Law Review, Stanford Law Review and Yale Law Journal. He frequently argues appellate cases, including matters before the U.S. Supreme Court and the U.S. Court of Appeal, and regularly serves as a commentator on legal issues for national and local media. He holds a J.D. from Harvard Law School and a B.S. from Northwestern University.